The Amateurs in Government
Briefly, here are the reasons why the Supreme Court voided the COMELEC bidding:
1. The COMELEC resolved to award the contract to Mega Pacific Consortium on the basis of an oral report from the members of Bids and Awards Committee. The written report recommending the award to Mega Pacific came six days after the award.
This is a problem because under the Rules on bidding, the losing bidder has seven days to file a protest from the time that the winner of the bid is announced by the Bids and Awards Committee. Further the rule also states that no award should be made until the protest , if any, has been resolved. How then can the loser protest if the award is made even before the Bids and Awards Committee can write its report on the winning bid? It gives you the feeling that this contract was rammed down the COMELEC's throat or rather, it rammed the contract on its own throat, so to speak.
2. The Rules for the bidding required that bidders be a corporation, a single proprietor, or a joint venture. Mega Pacific was not one of any of these at the time of the bidding. It claimed that it was a joint venture, but it failed to submit a joint venture agreement during the bidding.
All it has to prove the existence of the joint venture is a signed receipt by its purported President. Worse -- can you dig this? -- the rules of the bidding did not appear to have required the submission of a joint venture agreement or if it did, the men who evaluated Mega Pacific's documents didn't realize it was missing. How could people miss that? A gang of kidnappers could have filed a bid and by the looks of its would have qualified as a joint venture.
3. Mega Pacific's bid failed to meet the technical criteria set by the DOST, such as accuracy rating, ability to detect previously downloaded data to prevent double counting, and ability to print audit trail. For the bidding, all they had was a "demo" version.
Obviously, the winning bid was still a work in progress, Yet, in spite of the fact that technical guidelines required more or less a finished product, the COMELEC settled for the demo copy. I am outraged. How could we be so cheap?
4. COMELEC allowed Mega Pacific to correct its "demo" software. The Supreme Court said by doing this, the COMELEC went contrary to the purpose of a public bidding because it changes the bid.
Well, because the consortium won, and yes the COMELEC had remembered that the winning software bid had to be used for the May elections, COMELEC argued that the winning demo copy of the software could be changed or improved. They shouldn't have called for a bidding then. They could have just appointed this Mega Pacific as contractor to write the software until it got the whole thing right.
5. COMELEC's unnerving assertion that the problem in the software could be corrected could not be relied upon. You can almost hear Chairman Abalos saying, "Ok na yan. Maayos did 'yan pagdating ng eleksyon." Said the Supreme Court, it's too risky to put the elections on the line with this wishful thinking.
Well, this last one really is not a legal basis but well, its the Supreme Court speaking.
A copy of the decision can be found here.
Justice Tinga's dissent can be found here. His main point is that the elections is really a province of the COMELEC and the Supreme Court should afford itself a greater restraint considering that the COMELEC is a constitutional body.
Well, good point. But apparently not enough to win the votes of the rest of the court. Besides, it's not really very comforting, considering the elementary errors that the COMELEC committed in this bidding, as discussed above.
Based on experience with government biddings, it really isn't very heard to follow the law on government procurement, which is Republic Act. No. 9184 with its implementing rules. The law and the rules clearly spell out in detail the actions that the Bids and Awards Committee will do in the conduct of the bidding. What makes the entire exercise difficult is when business interest backed up by government influence and graft money starts dictating the process. Deviations from the norm and imprudent actions begin to happen in the procurement process. You can tell, just by the simple deviations that somebody was making money.
And this is what separate the amateurs from the pros. The amateurs will balk, take the money and do what the riggers say, even to the extent of making fools of themselves in public.
The pros -- they give the riggers the finger and say, "Follow the rules you prick. It's my ass on the line!"
Just look at Chairman Abalos. Tell me if he is a pro.